Bartnicki has its day before the U.S. Supreme Court

From the Winter 2001 issue of The News Media & The Law, page 33.

Most of the nine U.S. Supreme Court justices were openly skeptical of arguments made by the media-respondents and the government- and plaintiff-petitioners during arguments on Dec. 5 in Bartnicki v. Vopper.

A major point of contention in the arguments was whether the application of the federal wiretap act to acts involving speech was a content-neutral or content-based regulation. Solicitor General Seth Waxman and plaintiffs’ attorney Jeremiah Collins argued that the statute was subject to intermediate constitutional scrutiny because it does not discriminate on the basis of particular kinds of speech; that is, the statute was “content-neutral.” Statutes which are examined under the lens of the higher level of scrutiny — strict — are almost unfailingly rejected as unconstitutional, but statutes that are held to intermediate scrutiny survive more often.

“There is no suggestion here — unlike Florida Star or Pentagon Papers — of a censorial motive by the government, an effort to take certain facts off the table,” Waxman said, distinguishing two other Supreme Court cases involving the suppression of speech.

Justice Anthony Kennedy, who of all the justices seemed to be most aligned with the media, challenged Waxman. “What you’re doing here,” he said to Waxman, “is suppressing speech that’s valuable to the public.” Justice Kennedy also disputed Collins’ assertion that it is rare to strike down content-neutral statutes.

The media defendants attorney, Lee Levine, argued that the dissemination of truthful information about matters of public concern receives the full protection of the Constitution regardless of whether the statute is content-neutral. Levine relied on “the Daily Mail principle,” the theory that the media should not be punished for the dissemination of truthful information of public significance where it had no part in any illegality. The argument was clarified in a Supreme Court decision, Florida Star v. B.J.F., which held that “where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a State interest of the highest order.”

“I don’t believe that content neutrality is a factor when you’re talking about application of the Daily Mail principle,” Levine said.

“Do you lose if intermediate scrutiny is applied?” Justice Sandra Day O’Connor asked.

“No,” Levine replied, then explained why his opponents’ asserted interests failed against the importance of the First Amendment under an intermediate scrutiny analysis. For example, Levine pointed out there was no evidence that unlawful wiretapping was a systemic problem, a problem that the petitioners claimed they were interested in remedying.

Collins described for the court how his client felt “violated in front of 100,000 people” when the tape was broadcast and that an important governmental interest was harmed both by the recording and the disclosure of the recording.

The Court debated whether punishing disseminators of the illegally recorded conversation would create a disincentive to make illegal recordings. The justices questioned whether holding the person who distributed the tape and the media liable would “dry up” a market for illegal wiretap recordings. Levine argued there was no credible evidence that such a market existed and that punishing disseminators would have the effect of drying up the market even if it existed. Levine also suggested Congress could create harsher penalties for those who violated the wiretapping statute by making the recording. Waxman sharply disagreed and argued that punishing the disseminators would serve as a deterrent to future wiretap violations.

One undercurrent running through the arguments was privacy. Waxman and Collins argued that application of the wiretapping act would further an important governmental interest: ensuring the privacy of private cellular phone conversations. It was an argument that clearly resonated with several of the justices.

Justice Stephen Breyer analogized the facts of the case to a thief who breaks into a house and steals a diary. Should a newspaper be held liable for publishing the contents of the diary even if it didn’t actually participate in the theft? he pressed Levine. No, Levine said.

“So you’re saying that its unconstitutional to prohibit trespassers from coming into your house, steal your diaries, and listen to your most private conversations and then publish them in mass circulation dailies and you can’t get damages from that as long as the newspaper itself didn’t do the trespass, just knew all about it?” Breyer asked.

“Then I don’t see how you’re going to have privacy left,” Breyer said, exasperated. “I mean, what kind of privacy is there if people can break into your house, steal all your information, can be published in the newspaper that knows it and you can’t get any damages from the newspaper?”

“Your Honor,” Levine said, “you can go after the person who intercepted.”

But the justices’ discussion of assigning liability to disseminators was fueled by the fact that often — as in the case at bar — the interceptor is unknown and therefore goes unpunished. “Here we’re talking about an interception that is almost impossible to detect,” Waxman said, echoing earlier comments of Chief Justice William Rehnquist and Justice Antonin Scalia.

The justices also considered how far down the dissemination chain to apply liability. Justice Kennedy asked whether, if upon hearing the broadcast and then describing it to his wife, he too wouldn’t be guilty of a statutory violation. Collins said that such a disclosure was “too far down stream” to warrant liability.

The justices returned to the issue of the extent of liability when Waxman argued. He said that once the information is in the public realm, any future disseminators would not be liable. Thomas Goldstein, attorney for Jack Yocum, who gave the tape to the media, suggested however that such an analysis was also ambiguous. Disclosures to new sections of the country, for example, might expose a subsequent disseminator to liability.

Goldstein was given significantly more time to speak without interruption than his colleagues. Goldstein called using the wiretapping statute as a deterrent to dissemination of recorded information “too crude a weapon, effectively a thermonuclear bomb of sorts to be sustained in the sensitive area of, not property, but free speech.”

Set loose by an open-ended question from Rehnquist, he advocated applying intermediate scrutiny, and where “the final disclosure is on a question of public significance, and is by a person completely uninvolved in the illegal interception, then the speech rights outweigh.”

Interspersed with the arguments were several moments of levity. When Waxman, who argued second, began his argument by noting that there were “enough questions in the first 15 minutes to keep me fully occupied,” one of the justices retorted wryly, “So you don’t want any more?”

Later, Levine began his argument by noting that one of the conversation’s speakers suggested “blowing off the front porch” of a school board member. Scalia cut him off and pointed out that Levine was asking the court to decide the case on a broader basis than situations where violence was threatened.

“You really don’t care whether you win or not, you just want to win on the right grounds, is that what you want?” Scalia asked.

“Your Honor,” Levine said, smiling. “I’ll take it any way I can get it.” –DB